Thursday, December 19, 2013

ಸ್ವತಂತ್ರ್ಯ ಭಾರತದಲ್ಲಿ ಸಂವಿಧಾನ ಮರೆತ ನ್ಯಾಯಾಲಯ:


ಬ್ಯಾತ ಎನ್ ಜಗದೀಶ
ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ , ¢£ÁAPÀ: 02.07.2009 gÀAzÀÄ zɺÀ° GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄRå £ÁåAiÀĪÀÄÆwð J.¦.±Á ªÀÄvÀÄÛ £ÁåAiÀĪÀÄÆwð ಮುರಳಿ gÀªÀgÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 377 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¤ÃrzÀÝ ªÀĺÀvÀézÀ wÃ¥Àð£ÀÄß §¢UÉÆwÛ, ¸ÀA«zsÁ£À ¨Á»gÀ JAzÀÄ ºÉý ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ »jAiÀÄ £ÁåAiÀĪÀÄÆwð ¹AVé gÀªÀgÀ £ÉÃvÀÈvÀézÀ ¦ÃoÀ wÃ¥ÀÄð ¤ÃrvÀÄ.
ಈ ತೀರ್ಪಿನ ವಿರುದ್ದ ದೇಶ ವಿದೇಶಗಳಲ್ಲಿ ಜನರು ತಮ್ಮದೇ ಆದ ರೀತಿಯಲ್ಲಿ ಪ್ರತಿಕ್ರಿಯೇಯನ್ನು ನೀಡಿದ್ದಾರೆ ಅನೇಕರು ರಸ್ತೆಗಳಿಗಿಳಿದು ತಮ್ಮ ಪ್ರತಿಭಟನೆಯನ್ನು ಮಾಡಿದ್ದಾರೆ, ಪ್ರತಿಭಟನೆ ನಿರತ ಜನರನ್ನು ಅನೆಕರು ತುಚ್ಚವಾಗಿ ತೆಗಳಿದ್ದಾರೆ, ಅವ್ಯಚ್ಚವಾಗಿ ಬೈದಿದ್ದಾರೆ. ಇವರಾರು ನನ್ನ ಪ್ರಕಾರ ತಮ್ಮಲ್ಲಿರುವ ಧಾರ್ಮಿಕ ಅಂದತ್ವವನ್ನು ಕಳಚಿ ಈ ತೀರ್ಪನ್ನು ನೋಡಿದತ್ತೆ ಕಾಣುತ್ತಿಲ್ಲ. ಈ ಕಾಯಿದೆ ಕೆವಲ ಸಂಲಿಗ ಕಾಮಿಗಳನ್ನು ಶಿಕ್ಷಿಸುವುದಿಲ್ಲ, ಶಿಶ್ನ – ಯೋನಿ ಲೈಂಗಿಕ ಸಂಬದ್ದವನ್ನು ಬಿಟ್ಟು ಬೇರಲ್ಲ ರೀತಿಯ ಲೈಂಗಿಕ ಸಂಬದ್ದವನ್ನು ನಿಸರ್ಗ ನಿಯಮಕ್ಕೆ ವಿರುದ್ದವಾದುದ್ದು ಎನ್ನುವುದರಮೂಲಕ ಅವೆಲ್ಲವನ್ನು ಶಿಕ್ಷಾರ್ಹವನ್ನಾಗಿಸುತ್ತದೆ.
K¤zÀÄ PÀ®A 377.....?
ಕಲಂ 377 ದಂಡ ಪ್ರಕ್ರಿಯಾ ಸಂಹಿತೆಯ ಒಂದು ಕಾಲಂ ಇದು ಅನೈಸರ್ಗಿಕ ಅಪರಾಧಗಳು ಹಾಗು ಅವುಗಳಿಗೆ ಶಿಕ್ಷೆಯಬಗೆಯನ್ನು ತಿಳಿಸುತ್ತದೆ.  PÀ®A 377:- C£ÉʸÀVðPÀ C¥ÀgÁzsÀUÀ¼ÀÄ (Unnatural offences) ¤¸ÀUÀðzÀ ¤AiÀĪÀÄPÉÌ «gÀÄzÀÞªÁV AiÀiÁªÀÅzÉà ¥ÀÄgÀĵÀ; ¹Ûçà CxÀªÀ ¥ÁætÂAiÉÆA¢UÉ ¸Àé-EZÉÒ¬ÄAzÀ zÉÊ»PÀ ¸ÀA¨sÉÆÃUÀ £ÀqɸÀĪÀ AiÀiÁªÀÅzÉà ªÀåQÛAiÀÄÄ, CfêÀ PÁgÁªÁ¸À¢AzÀ CxÀªÀ ºÀvÀÄÛ ªÀµÀðUÀ¼À ªÀgÉV£À CªÀ¢üAiÀÄ JgÀqÀgÀ¯ÉÆèAzÀÄ §UÉAiÀÄ PÁgÁªÁ¸À¢AzÀ zÉÆÃr¸ÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ dįÁä£ÉUÀÆ ¸ÀºÀ UÀÄjAiÀiÁV¸ÀvÀPÀÌzÀÄÝ.
F PÀ®A C£ÀÄß £ÁgÀhiï ¥sËAqÉñÀ£ï gÀªÀgÀÄ zɺÀ° £ÁåAiÀiÁ®AiÀÄzÀ°è ,
1.     F PÀ®A ªÀÄÆ®¨sÀÆvÀªÁzÀ dÄrAiÉÆ-Qæ²ÑAiÀÄ£ï £À ªÀiË®åUÀ½UÉ vÀPÀÌAvÉ gÀavÀªÁzÀ PÁ£ÀÆ£ÀÄ ºÁUÀÄ EzÀÄ ¸ÀA¥ÀÆtð PÁAiÀÄðUÀvÀ GzÉÝñÀ¢AzÁV eÁjUÉ §A¢zÀÄÝ ºÁUÁ
2.    F PÁ£ÀÆ£ÀÄ ¸Àé-EZÉÒ¬ÄAzÀ E§âgÀÄ ªÀåQÛUÀ¼ÀÄ ¨Á¬ÄAiÀÄ(Oral) CxÀªÀ UÀÄzÀzÁégÀ(anal) UÀ¼À£ÀÄß ¯ÉÊAVPÀ QæAiÉÄUÉ G¥ÀAiÉÆÃV¸ÀĪÀÅzÀ£ÀÄß C¥ÀgÁzsÀªÀ£ÁßV¸ÀÄvÀÛzÉ
3.    EzÀÄ E§âgÀÄ MAzÉà ¸ÉQì£À ªÀAiÀĸÀÌgÀÄ vÀªÀÄä ಸ್ವಹಿಚ್ಚೆಯಿಂದ vÉÆqÀUÀĪÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ£ÀÄß C¥ÀgÁzsÀªÉ£ÀÄßvÀÛzÉ.
4.    F jÃwAiÀiÁV E§âgÀÄ MAzÉà ¸ÉQì£À ªÀåQÛUÀ¼ÀÄ vÀªÀÄä EZÉÑUÉ ¥ÀÆgÀPÀªÁV vÉÆqÀUÀĪÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄÄ, ¥ÉÆðøÀgÀÄ EªÀgÀ£ÀÄß »A¹¸À®Ä ¸ÀºÁAiÀÄPÀªÁUÀÄvÀÛzÉ, ºÁUÀÄ EzÀgÀ eÉÆvÉUÉ EzÀÄ C£ÉÃPÀjUÉ ¸ÀgÀ¼ÀªÁV ¸ÀÄ°UÉ ªÀiÁqÀ®Ä C£ÀÄPÀÆ® ªÀiÁr PÉÆlÖAvÁUÀÄvÀÛzÉ.
5.    F jÃwAiÀÄ ªÀvÀð£É¬ÄAzÁV ಸಲಿಂಗ ಕಾಮಿಗಳು (same sex) ªÀiÁqÀĪÀªÀರನ್ನು ಕೀಳುಭಾವದಿಂದ, ಅಪರಾಧಿಸ್ತಾನದಲ್ಲಿ ನೊಡುವುದರಿಂದ, ಸಮಾಜದ ಮುಖ್ಯವಾಹಿನಿಗೆ ಅವರನ್ನು ತರಲಾಗದೆ CªÀgÀ°è ºÀgÀqÀĪÀ UÀÄ¥ÀÛ gÉÆÃUÀUÀ¼ÀÄ, ºÉZï.L.«/Kqïì vÀqÉUÉ CªÀjUÉ w¼ÀĪÀ½PÉ ¤ÃqÀ®Ä ¸ÁzsÀåªÁUÀzÉ EgÀ§ºÀÄzÀÄ.
6.    MAzÀÄ ªÀUÀðzÀ d£ÀgÀ£ÀÄß C¥ÀgÁ¢üUÀ¼ÉAzÀÄ ªÀiÁqÀĪÀ F PÁ£ÀÆ£ÀÄ CªÀgÀ C¹ÜvÀéªÀ£ÀÄß £Á±À ªÀiÁqÀÄvÀÛzÉ.
7.    £ÉʸÀUÀðEPÀ ¤AiÀĪÀÄPÉÌ «gÀÄzÀÞ JAzÀÄ ªÁåSÁ夸ÀĪÀ F PÁ®AUÉ AiÀiÁªÀÅzÉà DzsÁgÀ«®è.
8.    ¸ÀA«zsÁ£ÀzÀ C£ÀÄbÉÑÃzÀ 15gÀ°è G¥ÀAiÉÆÃV¹gÀĪÀ ¸ÉPïì JA§ÄzÀ£ÀÄß PÉêÀ® dAqÀgï UÉ ¹Ã«ÄvÀUÉƽ¸À¨ÁgÀzÀÄ CzÀÄ ¸ÉPÀÄìöå¯ï NjAiÀÄAmÉñÀ£ï (sexual orientation) UÀÆ ¸ÀA§A¢ü¹zÀÄÝ, F ¤nÖ£À°è ¸ÉPÀÄìöå¯ï NjAiÀÄAmÉñÀ£ïಎಂಬುದು ಒಬ್ಬವ್ಯಕ್ತಿಗೆ ¸ÀA«zsÁ£ÀzÀ ªÀÄÆ®¨sÀÆvÀ ºÀPÀÄÌ.
ªÀÄwÛvÀgÀ «µÀAiÀÄUÀ¼À£ÀÄß ªÀÄÄRåªÁV ªÁzÀªÀÄAr¹zÀÄÝ EzÀPÉÌ «gÀÄzÀÞªÁV ¸ÀgÀPÁgÀ ªÀÄvÀÄ EvÀgÀgÀÄ F PɼÀPÀAqÀAvÉ ªÁzÀªÀÄAr¹zÀÝgÀÄ.

1.     ¯ÉÊAVPÀ QæAiÉÄ JA§ÄzÀÄ ವ್ಯಕ್ತಿಯ ªÀÄƯ¨sÀÆvÀ ºÀPÀÌ®è.
2.    £ÀªÀÄä zÉñÀzÀ°è ¸À°AUÀ PÁªÀĪÀ£ÀÄß M¥ÀÄàªÀAw®è ºÁUÀÆ CzÀ£ÀÄß ªÉÊAiÀÄQÛPÀ ¸ÀévÀAvÀæzÀ CrAiÀÄ°è vÀgÀ¯ÁUÀĪÀÅ¢®è ºÁUÀÆ CzÀ£ÀÄß ¤AiÀÄAwæ¸À¨ÉÃPÁUÀÄvÀÛzÉ.
3.    SÁ¸ÀVvÀ£ÀzÀ ºÀPÀÄÌ J®èQÌAvÀ®Æ ªÀÄÄRåªÀ®è.
4.    ¸ÀA«zsÁ£ÀzÀ C£ÀÄbÉÑÃzÀ 19(2) gÀ°è £ÉÊwPÀ ºÁUÀÆ ¸ÁªÀiÁfPÀ ªÀiË®åUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É ªÀÄÆ®¨sÀÆvÀ ºÀPÀÄÌUÀ¼À ªÉÄÃ¯É ¤§ðAzsÀªÀ£ÀÄß ºÉÃgÀ®Ä CªÀPÁ±À«zÉ.
5.    ¨ÉÃgÉ zÉñÀUÀ¼À°è C£ÀĸÀj¸ÀĪÀ ¸ÁªÀiÁfPÀ ºÁUÀÄ ¯ÉÊAVPÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß £ÀªÀÄä zÉñÀzÀ°è C£ÀĸÀj¸À®Ä PÁgÀtªÁUÀĪÀÅ¢®è.
6.    PÀ®A 377 eÉAqÀgï £ÀÆålæ¯ï; MAzÀÄ ªÉÃ¼É CzÀ£ÀÄß vÉUÉzÀÄ ºÁQzÀ°è M¦àUÉ E®èzÀ §®vÁÌgÀzÀ £ÉʸÀVðPÀ ¤AiÀĪÀÄUÀ½UÉ «gÀÄzÀÞªÁV £ÀqÉAiÀÄĪÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ£ÀÄß ²Që¸À®Ä ¸ÁzsÀå«®è.
7.    PÀ®A 377 ¸À°AUÀ PÁªÀÄUÀ¼À «gÀÄzÀÞ G¥ÀAiÉÆÃV¸ÀÄwÛ®è.
8.    ºÉZï.L.«/Kqïì, PÀ®A 377 ¤AzÁV ¤AiÀÄAvÀætzÀ°èzÉ, MAzÀÄ ªÉÃ¼É EzÀ£ÀÄß Qæ«Ä£À¯ï C¥ÀgÁzsÀ JAzÀÄ ¥ÀjUÀt¸À¢zÀÝ°è, EzÀgÀ°è vÉÆqÀV F jÃwAiÀÄ PÁ¬Ä¯ÉUÀ¼ÀÄ ºÉZÁÑUÀĪÀ ¸ÁzsÀåvÉ EgÀÄvÀÛzÉ.
9.    PÀ®A 377 C©üªÀåQÛ ¸ÁévÀAvÀæöåPÉÌ AiÀiÁªÀÅzÉà jÃwAiÀÄ°è zsÀPÉÌ vÀgÀĪÀÅ¢®è.
10.  ¨sÁgÀwÃAiÀÄ ¸ÀA¸ÀÌøw F jÃwAiÀÄ ¯ÉÊAVPÀ QæAiÉÄUÀ¼À£ÀÄß M¦àPÉƼÀÄîªÀÅ¢®è.
          F J¯Áè CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀt¹zÀ zɺÀ°  GZÀÑ£ÁåAiÀiÁ®AiÀÄ 02.07.2009 gÀAzÀÄ    “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving           minors.” wÃ¥ÀÄð ¤ÃrvÀÄ.
zɺÀ° £ÁåAiÀiÁ®AiÀÄzÀ F CzÉñÀªÀ£ÀÄß PÉ®ªÀgÀÄ ªÉÊAiÀÄQÛPÀªÁV ºÁUÀÄ ಕೆಲವರು ತಮ್ಮ ¸ÀAWÀl£ÉUÀಳ ಮುಕಾಂತರ ಪ್ರಶ್ನೆಮಾಡಿದ್ದರು. MmÁÖgÉAiÀiÁV 23 ವಿವಿದ ಸಂಘಸಂಸ್ಥೆಗಳು ಹಾಗು ವ್ಯಕ್ತಿಗಳು ತಮ್ಮ ತಮ್ಮ CfðUÀ¼À£ÀÄß ¸À°è¹ ¥Àæ±Éß ªÀiÁrzÀÝgÀÄ. EzÀgÀ°è §ºÀĪÀÄÄRåªÁzÀ CA±ÀªÉAzÀgÉ ¸ÀĪÀiÁgÀÄ 10PÀÄÌ ºÉZÀÄÑ zsÁ«ÄðPÀ ¸ÀA¸ÉÜUÀ¼ÀÄ, ಮುಖ್ಯವಾಗಿ »AzÀÆ¥ÀgÀ, ಇಸ್ಲಾಂ ºÁUÀÆ PÉæöʸÀÛ zsÀªÀÄðzÀ ¸ÀA¸ÉÜUÀ¼ÀÄ zɺÀ° GZÀÒ£ÁåAiÀiÁ®AiÀÄzÀ°è ¤ÃrzÀ F DzÉñÀªÀ£ÀÄß ¥Àæ²ß¹ದ್ದು ಒಂದು ಮಹತ್ವದ ವಿಷಯ. ±ÁAwAiÀÄ£ÀÄß ªÀÄgÉvÀÄ zsÀªÀiÁðAzsÀgÁV ©Ã¢AiÀÄ°è ¥ÀgÀ¸ÀàgÀ ಕಚ್ಚಾಡುವವರೆಲ್ಲರೂ F wæð£À «gÀÄzÀÞ MmÁÖgÉAiÀiÁV vÀªÀÄäzÉà DzÀ jÃwAiÀÄ°è ºÉÆÃgÁlªÀ£ÀÄß ªÀÄAr¹zÀÝgÀÄ. (¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ F wÃ¥ÀÄð ªÀÄ£ÀĵÀågÀ SÁ¸ÀVvÀ£ÀªÀ£ÀÄß UËgÀ«¸À¯ÁgÀzÀ J®è zsÀªÀÄðzÀ ªÀÄÆ®¨sÀÆvÀªÁ¢UÀ½UÉ vÀPÀÌ dAiÀÄ JAzÀgÉ vÀ¥ÁàUÀ¯ÁgÀzÀÄ).
F wÃ¥ÀÄð £À£ÀߣÀÄß ªÀtð¨sÉÃzÀ ¤ÃwAiÀÄ «gÀÄzÀÞ £ÀqÉzÀ ºÉÆÃgÁlUÀ¼À°èUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄvÀÛzÉ. EzÀÄ Mc Laurin vs Oklahama State Regects 339 US 637(1950) £É£À¦¸ÀÄvÀÛzÉ.
…George Mc Laurin ±ÉÊPÀëtÂPÀ «µÀAiÀÄzÀ°è ªÀiÁ¸ÀÖgï rVæ ªÀÄÄV¹zÀÝ. NPÀèºÁªÀÄ «±Àé«zÁ央AiÀÄzÀ°è  qÁPÀÖgï D¥sï JdÄPÉñÀ£ï ¥ÀzÀ«UÁV Cfð ¸À°è¹zÀÝ. DvÀ£ÀÄ PÀ¥ÀÄà ªÀtðzÀªÀ£ÁVzÀÝjAzÀ CªÀ¤UÉ «±Àé«zÁ央AiÀÄzÀ°è ¥ÀæªÉñÀ ¤gÁPÀj¹zÀÝgÀÄ. EzÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ°è ¥Àæ²ß¹zÀÝ eÁeïð ªÉÄPÁèj£ï «dAiÀıÁ°AiÀiÁV «±Àé«zÁ央AiÀÄzÀ°è ¥ÀæªÉñÀªÀ£ÉßãÉÆ ¥ÀqÉzÀ. DzÀgÉ E°è DvÀ¤UÉ PÀÆgÀ®Ä ¨ÉÃgÉ D¸À£ÀzÀ ªÀåªÀ¸ÉÜ ªÀiÁqÀ¯ÁVvÀÄÛ ºÁUÀÄ ©½§tÚzÀªÀgÀ eÉÆvÉ ¸ÉÃgÀ®Ä CªÀPÁ±À«gÀ°®è.

F jÃwAiÀÄ ¨sÉÃzÀ¨sÁªÀªÀ£ÀÄß ªÀÄvÉÛ ¥Àæ²ß¹zÀ eÁeïð ªÉÄPÁèj£ï UÉ F ¨sÁj U.S. f¯Áè £ÁåAiÀiÁ®AiÀÄ(¥À²ÑªÀÄ f¯Éè, NPÀèºÁªÀÄ) zÀ°è ¸ÉÆîÄAmÁ¬ÄvÀÄ. DzÀgÀÄ ºÉzÉUÀÄAzÀzÉ DvÀ U.S. ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ°è EzÀ£ÀÄß ¥Àæ²ß¹zÀ .

CªÀ£À ªÁzÀªÀ£ÀÄß M¦àzÀ U.S. ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄ «±Àé«zÁ央AiÀÄ CxÀªÀ ¸ÀPÁðj PÀbÉÃjUÀ¼À°è F gÉÃwAiÀÄ ¨sÉÃzÀ¨sÁªÀ ªÀiÁqÀĪÀÅzÀÄ vÀ¥ÉàAzÀÄ wÃ¥ÀÄð ¤ÃrvÀÄ.

 U.S.£À ¸ÀªÉÇÃðZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ F wÃ¥ÀÄð D zÉñÀzÀ°è ªÀtð ¨ÉÃzÀªÀ£ÀÄß vÉUÉzÀÄ ºÁPÀĪÀ°è MAzÀÄ ºÉƸÀ ºÉeÉÓAiÀÄ£Àß ಇಟ್ಟು vÁ£ÁVAiÉÄà PÁ£ÀÆ£ÀÄ ªÀiÁrvÀÄ ºÁUÀÄ D zÉñÀzÀ ±Á¸ÀPÁAUÀPÉÌ PÁ£ÀÆ£ÀÄ ªÀiÁr JAzÀÄ ºÉý £ÀÄtÄaPÉƼÀî°®è.
ಭಾರತ ನ್ಯಾಯಾಲಯ ವ್ಯವಸ್ಥೆಗೆ ಈ ರೀತಿಯ ಕಾನೂನು ಮಾಡಿರುವ ಪ್ರಸಂಗಗಳು ಇಲ್ಲ ಎಂದೇನಿಲ್ಲ ಅನೇಕ ಭಾರಿ SC ಶಾಸಕರ ಕೆಲಸವನ್ನು ಮಾಡಿರುವ ಉದಾಹರಣೆಗಳಿವೆ. ಇದೇ ನ್ಯಾಯಮುರ್ತಿಯವರು ಸಹ ಈ ರೀತಿಯಾಗಿ ಕಾನೂನುಗಳನ್ನು ಮಾಡಿದ್ದಾರೆ. ಅದರೆ ಈ ಭಾರಿ ಮಾತ್ರ ಇವರು ಈ ಕೆಲಸವನ್ನು ಮಾಡಲು ಹಿಂದೇಟು ಆಕಿದ್ದೇಕೆ ಎಂಬುದು ಬಹುದೊಡ್ಡ ಪ್ರಶ್ನೆ.

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Thursday, December 12, 2013

Our Supreme Court Failed to do, what US Supreme Court did in the year 1950!

Yesterday’s verdict by our Apex Court on Section 377 IPC, took me back to Black’s Fight against racial discrimination in US and their legal fight in US Supreme Court, the case was, McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), was a United States Supreme Court case that reversed a lower court decision upholding the efforts of the state-supported University of Oklahoma to adhere to the state law requiring African-Americans to be provided graduate or professional education on a segregated basis. The court found that the university's inaction in providing separate facilities, in order to meet Oklahoma state law, allowing McLaurin to attend the institution was a violation of his Constitutional rights.
George McLaurin, who already had a Masters Degree in Education, was first denied admission to the University of Oklahoma to pursue a Doctor of Education degree. McLaurin successfully sued in the US District Court for the Western District of Oklahoma to gain admission to the institution (87 F. Supp. 526; 1948 U.S. Dist.) basing his argument on the Fourteenth Amendment. At the time, Oklahoma law prohibited schools from instructing blacks and whites together. The court found that the university's inaction in providing separate facilities, in order to meet Oklahoma state law, allowing McLaurin to attend the institution was a violation of his Constitutional rights.
The University admitted McLaurin but provided him separate facilities, including a special table in the cafeteria, a designated desk in the library, and a desk just outside the classroom doorway.
McLaurin returned to the US District court and petitioned to require the University of Oklahoma to remove the separate facilities allowing him to interact with the other students fully (87 F. Supp. 528; 1949 U.S. Dist.) The court denied McLaurin's petition.
McLaurin then appealed to the US Supreme Court. On June 5, 1950, the United States Supreme Court ruled that a public institution of higher learning could not provide different treatment to a student solely because of his/her race as doing so deprived the student of his/her Fourteenth Amendment rights of Equal Protection.
Accordingly, the high court reversed the decision of the US District Court, requiring the University of Oklahoma to remove the restrictions under which McLaurin was attending the institution. This case together with Sweatt v. Painter, which was decided the same day, marked the end of the separate but equal doctrine of Plessy v. Ferguson in graduate and professional education.

On 02.07.2009 Delhi High Court put an end from his side to the law which was there on the book even after the 59 years of Constitution by saying, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.  The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to  amend  the  law  to  effectuate  the recommendation of the Law Commission of  India  in  its  172nd  Report which we believe removes a  great  deal  of  confusion.  Secondly,  we clarify that our  judgment  will  not  result  in  the  re-opening  of criminal cases involving Section 377 IPC that  have  already  attained finality.” This was a relief to large number of people who are identified themselves either as Gay, lesbian Bisexual Transgenders,  Hijara and Kothis (L.G.B.T) persons. They are no more criminals; their consensual sexual act is no more criminal act, they are no more criminals in the eye of law enacted as early as in the year 1860.
The joy did not lost longer the magical number 11.12.13 was turned disaster to number of those people and not only those people but the people who believe in a freedom of choice. The Apex Court said
54.   In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
55.   The appeals are accordingly allowed, the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed.
56.   While parting with the case, we would like to make it clear that  this Court has merely pronounced on the correctness of  the  view  taken  by  the Delhi High Court on the constitutionality of Section 377 IPC and found  that the  said  section  does  not  suffer  from  any  constitutional  infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
Up course Supreme Court has its reasoning and logic in coming to this conclusion but the judicial system is so blind? Judiciary does not see what is happening in and around?, don’t they get the logic?
But the question remain what US Supreme Court did in the year 1950 Indian Supreme Court fail to do in the year 2013.
It’s completely justifiable to the fact that the Legislator should legislate the law, the fact that they have not done for 63 would have been good reason for Supreme Court to substantiate the order of the Delhi High Court, then setting aside and saying that it’s a job of the legislature not the judiciary.
The difference is that the US Supreme Court could have said the same thing in the year 1950 but they could able to see the problem; they could able to see that the state has failed to do so. What prevented our Supreme Court to make a history? Its not that this is the Supreme Court has not struck down the law before. It’s not that the Supreme Court made the law before. But this time they have really failed. They have failed to understand the feelings of the people who are oppressed, who are discriminated, differenced. 

Tuesday, December 10, 2013

377 IPC

Supreme Court says ‘adult consensual same sex is crime in India’ this is what SC said after 63 years of Constitution and made large number of people who are identified themselves either as Gay, lesbian Bisexual Transgenders,  Hijara and Kothis (L.G.B.T) persons  are criminals in the eye of law enacted in the year 1860 by British Rulers against India.
02.07.2009 was the day of joy for many LGBT Community as the Delhi High Court has said in many words that,
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality”.

 The challenge basically was,
1.     Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms,
2.     The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society.
3.     By criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.
4.     Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision.
5.     that Section 377 IPC's legislative objective of penalizing "unnatural sexual acts" has no rational nexus to the classification created between procreative and non- procreative sexual acts,
6.     That the expression "sex" as used in Article 15 cannot be read restrictive to "gender" but includes "sexual orientation" and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination.
State and the others at the High Court argued that:
1.     there is no fundamental right to engage in the same sex activities.
2.     In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens' right to privacy and equality.
3.     that right to privacy is not absolute and can be restricted for compelling state interest.
4.     Article 19(2) expressly permits imposition of restrictions in the interest of decency and morality.
5.     Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India.
6.     that Section 377 IPC is not discriminatory as it is gender neutral. If Section 377 IPC is struck down there will be no way the State can prosecute any crime of non- consensual carnal intercourse against the order of nature or gross male indecency.
7.     that Section 377 IPC is not enforced against homosexuals and there is no need to "read down" the provisions of Section 377 IPC.
8.     that spread of AIDS is curtailed by Section 377 IPC and de-criminalisation of consensual - same - sex acts between adults would cause a decline in public health across society generally since it would foster the spread of AIDS.
9.     that Section 377 IPC does not impact upon the freedom under Article 19(1) as what is criminalised is only a sexual act.
10.                        Indian society considers homosexuality to be repugnant, immoral and contrary to the cultural norms of the country.
And this provision its violates,
1.     that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens,

The Law: Until the decision of the Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, a rather narrow and constricted meaning was given to the guarantee embodied in Article 21. Any law interfering with personal liberty of a person must satisfy a triple test:
(i)                            it must prescribe a procedure;
(ii)                         the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and
(iii)                       it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive
Supreme court in Menaka Gandi case said “If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21.” And even in Khark Singh: “held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to "life" in Article 21. Justice Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right of movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right to privacy. In effect, all the seven learned Judges held that the "right to privacy" was part of the right to "life" in Article 21.

And now we have the Court monitoring private life’s of People :-

Thursday, October 10, 2013

Corruption and India



Prevention of corruption Act is going through drastic changes through the act and through the various Judgment wrongly rendered by the high court and Supreme Court,  but I had hardly heard any news from thousands of people who marched along with team Anna and opposition government which said congress government is corrupt, and we will eradicate the corruption.
In Karnataka for the past 5 years we have seen what we have not seen for the past 60 years of independence ruling, especially with respect to corruption. I have argued with number of people that corruption is not THE issue/threat and there are more serious threats in the society. People have debated, debated and said only one issues is corruption and eradication of corruption will solve all other problem. For some reason people believe that present opposition, Loksatta party, Aam Aadmi party are capable of bringing down the corruption. I never accepted this and I think I am correct; the reason why I say this is because no one has said anything about the recent development in eradicating the corruption.
Amendment to the law
Central Government has recently presented amendment to the Prevention of corruption act, 1988, “The Prevention of Corruption (Amendment) bill -2013” which has 10 different objectives and by look some of these objectives are great and worth amending the law, but if one goes deep in to it and see the flaw which it created and thereby brought the obstacles to prosecute the public servant is beyond imaginable. I would like to elaborate with few example:
1.      Section 19 of the act talk about the “Previous sanction necessary for prosecution”
Section 19 (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

If someone want to file a case under the provision of this act he/she can file either to the authority or to the court asking to direct the investigation under 156(3) of Code of Criminal Procedure, 1973 (Cr.P.C.), based on the investigation if there is a case then the court will take the cognizance if the person no more public servant or there is an order of sanction to prosecute from authority against that public servant. The present amendment inserted new phrase after the words “who is employed”,  the words "who is employed, or as the case may be, was at the time of commission of the alleged offence employed" by this insertion the person will continued to enjoy the benefits even though he is no more public servant.

What is the problem?: the problem is simple if we are talking about the small scale employee in the government department these things do not matter the petition filed against these people are normally enquired and action will be taken. Assuming that the action is not taken if you use the provision of Section 156(3) of Cr.P.C. an investigation could be ordered an investigation can be conducted fairly and the person can be brought under the scan of law easily. The real issues is with respect to the high rank officials of the department and the ministers, MLA’s, MLC’s and member of parliament and the member of Rajyasabha. We all know that these people will have greater pull in the system. Think if one files a petition to authority it will be closed without any progress, then if we go to court by using Section 156(3) of Cr.P.C. even though court order for investigation,  the investigation department will be influenced and favor report will be filed and then the real issues starts. Now if I want to prosecute these people negating the investigation report I need sanction which is the requirement under section 19 of the act. This is the most difficult part to obtain the sanction for prosecution of a public servant who are politicians. However they could have been prosecuted once they remitted the office without sanction. Politician’s maximum terms either 5 years if they are member of lower house and 6 years if they are member of upper house then they have to be re-elected. Now once they finished their term and may be re-elected but it is not called continuation of office hence we don’t need sanction to prosecute these people. However the new act makes it mandatory thought they are not public servant. It means that the processes of prosecution of these people are made more difficult through this amendment.

2.    Increasing the punishment: It’s an excellent idea that the punishment increased for the offences under the prevention of corruption cases. They have also increased the punishment if the offender commits crime again and again. The catch is they have not increased the punishment based on the amount involved, and they have also not increased the punishment if person possess property worth cores of rupees. For example if someone is caught with  giving or accepting the bribe of Rs. 500 or 5000 or 5 lakh the punishment is minimum 3 years. If the person possesses property worth cores of rupees, his/her punishment is not less than 1 year. Which means the act never intended to prosecute the big fish.

Judicial verdict:
The year 2010, 2011, 2012, 2013 has seen number of cases being filed under the prevention of corruption act in Karnataka mostly against the ministers or legislators. If I speak for Bangalore city court alone, in the year 2010 about 40 cases got filed and in 2011 about 70 + cases and in the year 2012 about 72 cases got filed and in 2013 also about 40+ cases so far filed in Lokayukta court alone. Though there are number of cases filed in various districts in Karnataka, Bangalore is highest in the list.

Karnataka High Court in B.V. Acharya v/s N Venkatesh (W.P. No:14047 OF 2012) decided on 03.08.2012 declared that, sanction is necessary to file a case under the prevention of corruption act against the public servant, trial court can’t pass order under section 156(3) of Cr. P.C without valid sanction. However this judgment is not followed the principal rendered by the five Judge’s bench of the Apex Court in R.R.Chari v/s State of Uttar Pradesh (AIR 1951 SC 207). Number of other Judgment rendered by the Karnataka High Court reiterated the same principal, which gave way to the corrupt official and the politicians’ way to do what they want to do.

The issues reached the Apex court challenging the order passed by the Karnataka High court in M.K.Aiyappa V.s Anil Kumar where a case was filed by Anil Kumar against the IAS officer M.K.Aiyappa who was the D.C. Bangalore Urban dist and others include MLA officer for illegal granting land. High court quashed the case registered against M.K.Aiyappa stating that there was no sanction to file complaint before the special court. The complainant Anil Kumar challenged this order before the Apex court. Bench of the Hon’ble Apex Court on 01-Oct-2013 in Criminal Appeal Nos.1590-1591 of 2013 [Anil Kumar v. M.K. Aiyappa], it has been held that a Magistrate or a Special Judge has no legal power to even direct investigation by the police by recourse to Section 156(3) of the Cr.P.C unless there is already a valid sanction from the Government tolerating a police investigation.  However, in R.R.Chari v. State of Uttar Pradesh (1951 SCR 312 : AIR 1951 SC 207) said that, when a Magistrate or a Special Judge directs investigation by the police in terms of Section 156 (3) of the Criminal Procedure Code, 1973, he would not have taken cognizance of any offence and this is the established law in this country till date. However Anil Kumar v. M.K. Aiyappa, it has been very erroneously held by the Apex Court, which is going to have an impact on the more than 400 cases pending in Karnataka alone under the prevention of corruption cases and also going to have an impact on the other state for the people who are fighting against the corruption.


Though such wide impact Judgment rendered by the Apex court, though such gross violation amendment has mooted I heard no voice. I assume that people are not aware these devolvement shall I? 

Monday, May 20, 2013

On Sentencing of Death to Bhullar


On Sentencing of Death to Bhullar
Byatha N Jagadeesha

After the judgment by Apex Court on Devendra Pal Singh Bhullar, suddenly things flashed me in my mind what was the freedom fight for? Can this freedom be defined as need for ‘justice’ and ‘fair procedure’?  Did we not fight against discriminatory rules of British Empire? If the answer is positive what are we debating so much about Bhullar need to be hanged/ Terrorist convicted Bhullar need to be hanged?
Bhullar case makes an interesting study to analyze if he has had the privilege of “Fair Procedure” from his own Government and judicial system. Let’s look at the Bhullar’s battle for justice or ‘Fair Procedure’.  It is the prosecution version that on 11.09.1993 Mr. M.S. Bitta, the then President of Indian Youth Congress (I) was in his office at 5, Raisina Road, New Delhi.  At about 2.30 p.m., Mr. Bitta left the office and the car in which he was travelling came out of the main gate of 5, Raisina Road and one pilot car, in which security personnel provided to him were sitting, was ahead of his car.  The pilot car slowed down in order to take right turn on Raisina Road.  In the meantime, one bus came on Raisina Road, from the side of Windsor Palace.      At that time, there was an explosion in a car parked outside 5, Raisina Road. Though, Mr. Bitta was not hurt badly, a number of other vehicles parked on the road and footpath caught fire.  Because of the bomb blast nine persons succumbed to the injuries and 29 other persons sustained injuries.  During the course of investigation, it was learnt that Kuldeep, Sukhdev Singh, Harnek, Devender pal Singh and Daya Singh Lahoria, all members of KLF, a terrorist organization, were behind this blast and their aim was to assassinate Mr. Bitta. It was also alleged that he made attempt to fled away from India and based on the information supplied by the Indian authorities he was taken into custody at Frankfurt Airport and deported to India and on the night of 18/19.1.1995, and on his arrival, he was handed over to IGI Airport police authorities by Lufthansa Airlines Staff and immediately he was arrested.
He was also tried along with the Daya Singh Lahoria but Daya Singh was acquitted by the Designated Court on the ground that there was no evidence against him and that he has not made any confessional statement. The Court also observed that there was no iota of material on record to corroborate confessional statement made by accused Devender Pal Singh against his co-accused Daya Singh Lahoria and prudence requires that in absence of corroboration, benefit should go to Daya Singh Lahoria.
The argument addressed on behalf of Bhullar is that except the so called confessional statement, which was retracted and explained in what contest these things were taken by his latter to the court dated 21.04.1995 and the 313Cr.P.C. Statement, there is no other evidence against the appellant and the said confessional statement is neither voluntary nor true and in any case there is no corroborative evidence. However the designate court convicts him, though the Supreme Court also see the point come to conflicting opinion on this and one Judge decides to acquit him and the other two judges confirm the sentence imposed on him by the Designated court. Justice Shah[1] elaborately listed in the manner Bhullar was implicated in this case and the manner the alleged confession statement was recorded and the legal implications of the same.
If one looks at the Majority judgment written by Justice Arijit Pasayat has gone in to the object of the TADA and the threat of Terrorism and the academic discussion on the definition of Terrorism and so on. What seems to have missed out is the convict Bhullar was not challenging the validity of TADA he was merely challenging the convection for him in the absence of any other substantive material and conviction for him in the absence of acquittal of co-accused who was charged along with him for ‘Criminal Conspiracy’ of the alleged act. This appears the Judgment was delivered or the Bhullar was convicted to death only to full fill the collective conscious.
Now the question really is, is this really ‘fair procedure’? This is one set of defeat not for just Bhullar but for ‘Fair Procedure’ itself.
Let us look at the other legal battle in which Bhullar engaged:
The Review Petition was filed against this order and the same was also dismissed by its order dated 17.12.2002. Thereafter on 14.1.2003 he has sent a Petition to the President under Article 72 of the Constitution. Pending adjuration of Petition under Article 72 by the President, Curative Petition (Crl.) No. 5 of 2003, filed by the Bhullar was also dismissed by the Apex Court on 12.3.2003.
There are numerous judgments which talk about the role of the President under Article 72 of the Constitution of India. In fact Justice Arijit Pasayat himself in his judgment at para 60 of Bhullar’s case makes an important observation in connection to Justice Shah’s acquittal of the Bhullar and quotes from the previous judgment’s Ramdeo Chauhan v. State of Assam[2]
“56. But, a question that remains to be considered further are the effect of conclusion arrived at by my learned Brother Mr.   Justice Thomas. Is the            accused remediless;          that remains to be seen.  Few provisions in the Code of Criminal Procedure (for short the Code) and other in the Constitution deal with such situation.  Sections 432, 433 and 433A of the Code and Articles 72 and     161 of the Constitution   deal   with pardon. Article 72 of the Constitution confers upon the President power to grant of pardons, reprieves, respites or remission of punishment or to suspend, remit or commute sentence of any person of any offence.  The power so conferred is without prejudice to the similar power      conferred on the Governor of        the State. Article 161 of the Constitution confers upon the Governor of a State similar power in respect of any offence against any law relating to a matter to which the executive power of the State extends. The power under Article 72 and Article 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Sections 432, 433 and 433A of the Code or by any Prison Rules.
    57. Section 432 of the   Code empowers the appropriate Government to suspend or remit sentences.  The expression appropriate Government means the Central  Government in cases  where the sentences or order relates to the matter to which  the  executive  power of the Union extends,  and the State  Government  in  other  cases.   The  release  of the prisoners  condemn  to         death  in  exercise  of          the  powers conferred  under  Section  432 and  Article  161 of the Constitution  does  not amount to interference with due and proper course     of justice, as the power of  the  Court  to pronounce  upon the validity, propriety and correctness  of the  conviction            and sentence remains  unaffected.   Similar power as those contain in Section 432 of the Code or Article 161 of the Constitution can be exercised before, during or after trial.  The power exercised under Section 432 of the Code is largely an executive power vested in the appropriate Government and      by reducing the sentence, the authority concerned thereby modify the judicial sentence. The Section confines the power of the Government to the suspension of the execution of the sentence or remission of the whole or any part of the punishment.  Section 432 of the Code gives no power to the Government to revise the judgment of the court. It only provides power of remitting the sentence. Remission of punishment assumes the correctness of the conviction and only reduces punishment in part or whole. The word remit as used in Section 432 is not a term of art.   Some of the meanings of the word remit are to pardon, to refrain from inflicting to give up.   It        is therefore  no  obstacle in  the way  of  the  President  or Governor,  as  the case may be in remitting the sentence  of death. A remission of sentence does not mean acquittal.
58.The power to commute a sentence of death is independent of  Section 433A.  The restriction under Section 433A of the Code comes into operation only after power under Section 433 is exercised. Section 433A is applicable to two categories of convicts:(a) those who could have been punished with sentence of death and (b) those whose sentence have been converted into imprisonment for life under Section 433.  It was observed in Mura Ram vs.  Union of India [1981 (1) SCC 106] that Section 433A does not violate Article 20(1) of the Constitution.
59. In  the circumstances, if any motion is made in terms of Sections 432, 433 and 433A of the Code and/or Article 72 or Article 161 of the Constitution as the case be, the same may be appropriately dealt with.  It goes without saying that at the relevant stage, the factors which have weighed with my learned Brother Mr.  Justice Thomas can be duly taken note of in the context of Section 432(2) of the Code.
At para 61 Justice Pasayat said “61 the principal set out above have application to the present case. What is the impact of this observation?
Did President while passing an order under Article 72 of the Constitution have considered this aspect? It appears that Bhullar has failed at this junction as well. The President seems to have forgotten the principal of ‘Fair Procedure’ while deciding on Bhullar’s Mercy Petition. Unfortunate for Bhullar, his freedom as a citizen for ‘Fair procedure/Justice’ is denied for second time and now it’s through President’s rejection of his mercy petition.
That’s brings us to Third time where ‘Fair Procedure’ was denied to him this time again by the Apex court while dismissing his petition in which he challenged the rejection order passed by the President under article 72 of Indian Constitution. Let us see what Court did this time.
Court started with an excellent note, the beginning line of the judgment by Justice Singhvi.G.S. "Human life is perhaps the most precious gift of the nature, which many describe as the Almighty" at Para 8, the Judgment, went on to talk about the movement against death sentence, and said "Even after the judgments in Bachan Singh’s case and Machhi Singh’s case, Jurists and human rights activists have persisted with their demand for the abolition of death penalty and several attempts have been made to persuade the Central Government to take concrete steps in this regard.  It is a different story, that they have not succeeded because in recent years the crime scenario as changed all over the world.  While there is no abatement in the crimes committed due to personal animosity and property disputes, people across the world have suffered on account of new forms of crimes. The monster of terrorism has spread its tentacles in most of the countries.  India is one of the worst victims of internal and external terrorism. In the last three decades, hundreds of innocent lives have been lost on account of the activities of terrorists, who have mercilessly killed people by using bullets, bombs and other modern weapons"
This is where the Learned Judge set the motion to full fill the ‘Collective-continuous’ and this is precisely to break the ‘fair procedure’ though it was argued by the senior counsel, who assisted the Court as an Amicus at Para 11 and 12 and also argument advanced by the petitioner intervener the court consider to address the following question at para 16:
(a)   What is the nature of power vested in the President under Article 72and the Governor under Article 161 of the Constitution?
(b)   Whether delay in deciding a petition filed under Article 72 or 161 of the  Constitution  is,  by  itself,  sufficient  for  issue  of  a  judicial  fiat  for commutation of the sentence of death into life imprisonment irrespective of the nature and magnitude of the crime committed by the convict and the fact that the delay may have been occasioned due to direct or indirect pressure brought upon the Government by the convict through individuals, groups of people and organizations from within or outside the country or failure of the concerned public authorities to perform their duty?
(c)   Whether  the  parameters  laid  down  by  the  Constitution  Bench  in Triveniben’s  case  for  judging  the  issue  of  delay  in  the  disposal  of  a petition filed under Article 72 or 161 of the Constitution can be applied to the cases in which an accused has been found guilty of committing offences under TADA  and other similar statutes?  
(d)   )  What  is  the  scope  of  the  Court’s  power  of  judicial  review  of  the decision taken by the President under Article 72 and the Governor under Article 161 of the Constitution, as the case may be? "
it is interesting reason what the Apex court says at para 40 “We are also of the view that the rule enunciated in Sher Singh’s case, Triveniben’s case and some other judgments that long delay may be one of the grounds for commutation of the sentence of death into life imprisonment cannot be invoked in cases where a person is convicted for offence under TADA or similar statutes.  Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives.  At times, their objective is to annihilate their rivals including the political opponents.  They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State.  While doing so, they do not show any respect for human lives.  Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights”

When it comes to the issues with respect to the scope of the Court’s power of judicial review of the decision taken by the President under Article 72 and the Governor under Article 161 of the Constitution the apex court seems to have missed the real issues which need to be address and seems to have decided to ignore the principal of ‘Fair Procedure’ in the context of the crime at para 41, it says
“While examining challenge to the decision taken by the President under Article 72 or the Governor under Article 161 of the Constitution, as the case may be, the Court’s power of judicial review of such decision is very limited. The Court can neither sit in appeal nor exercise the power of review, but can interfere if it is found that the decision has been taken without application of mind to the relevant factors or the same is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness –"
Again it admits to the extent the delay in disposal of the case and makes the following observation at para 44,
“It is true that there was considerable delay in disposal of the petition filed by the petitioner but, keeping in view the peculiar facts of the case, we are convinced that there is no valid ground to interfere with the ultimate decision taken by the President not to commute the sentence of death awarded to the petitioner into life imprisonment”
But missed out the larger question raised and the judicial review is not limited to delay in disposal of the petition but the act of president to consider the petition in just and fair manner and fallow the Principal of ‘Fair Procedure’ and no comment/ observation have been made to that extent which is very crucial from the factual angle of this particular case and also in general.
This is also contrary to the law already laydown by the Apex court, the Courts have struck down decision taken by the President / Governor on the grounds that all relevant considerations were not taken into account while exercising clemency powers under Article 72 / 161. See, for example, K.M. Nanavati V/s The State of Bombay 1960 1 SCR 497; Kehar Singh and Another V/s Union of India (1989) 1 SCC 204; Swaran Singh V/s State of U.P. and Others. (1998) 4 SCC 75; Satpal and Another V/s State of Haryana (2000) 5 SCC 170; Epru Sudhakar and Another V/s Govt of A.P. (2006) 8 SCC 161; Dhananjoy Chatterjee v. State of W.B, (2004) 9 SCC 751; Narayan Dutt and Others V/s State of Punjab (2011) 4 SCC 353.  
 If even given the little more attention to what is said in the Majority judgment while imposing the death penalty Bhullar this court could have consider that president has not acted with the full knowledge and the manner in which sentence was awarded.
I think this is where Bhullar lost the fight again for 3rd time and again he has lost the fight to full fill the collective conscious as against the “fair procedure” for what many people fought for many years.



[1] (2002)5 SCC 234 Para 11 to pare 25
[2] (2001) 5 SCC 714